Last November the Commons Culture Media and Sport Select Committee announced a wide ranging inquiry into press standards, privacy and libel. Newspaper groups and other interested parties were asked to submit evidence by 14 January 2009 before a series of oral hearings.

The defamation cases concerning coverage of Madeleine McCann's disappearance were the immediate prompt for the inquiry. Last year news organisations paid out more than £1 million in damages following the reporting of Madeleine's disappearance.

The inquiry will consider whether those cases revealed a fundamental weakness with the self- regulation of the Press Complaints Commission (PCC), and in particular why the PCC did not launch its own inquiry into the coverage of the McCann case and whether news organisations have made any changes in view of these cases.

The Committee has also invited opinions on the interaction between the operation and effect of UK libel laws and press reporting and on the impact of "no win no fee" conditional fee agreements (CFAs) for libel and privacy cases. The inquiry's spotlight is also on the contempt of court laws relating to reporting on investigations and trials, particularly given the expansion of the internet and whether the balance between press freedom and personal privacy is the right one.

In a separate development in December 2008, Bridget Prentice, the Parliamentary Under Secretary for State of the Ministry of Justice announced that the Government will be launching a consultation in 2009 on defamatory material on the internet, the abolition of criminal libel and the high cost of defamation proceedings. This announcement followed comments by the Labour MP and Former Minister Denis MacShane on libel tourism, "the willingness of the British Courts to allow wealthy foreigners who do not live here to attack publications that have no connection with Britain."

Sienna Miller settles harassment claim
Last November 2008 Sienna Miller settled her actions against the photographic agency Big Pictures (UK) Limited and its founder, Darren Lyons, for damages of £53,000, legal costs and undertakings against future harassment. The settlement covered actions for harassment and invasion of privacy.

The action under the Protection from Harassment Act 1997 was the first time that a celebrity has taken action against photographers using anti - harassment legislation, more often used to tackle animal rights protesters and stalkers. Although this is a settlement and not a binding court ruling, it will have repercussions both for celebrities and for newspapers / photographic agencies.

Miller had complained about being pursued in a very dangerous manner which she found very frightening. Miller's counsel said at an earlier hearing that "her life had been made intolerable by the conduct of which we complain".

The settlement includes a detailed agreement over where the actress can and cannot be photographed. Big Pictures agreed that its photographers would not follow Miller by car, motorcycle or moped, or “any means howsoever”, or place her under surveillance. The agreement included undertakings not to wait on her doorstep, or at the home of her family and covered taking pictures of her in buildings not open to the public, or where she has a reasonable expectation of privacy.

However the parties agreed that Miller would not have any reasonable expectation of privacy when entering or exiting a bar, restaurant or nightclub, on a public footpath or highway – and not visibly upset or distressed – or attending a “red carpet” event.

For further information please contact :
David Engel

ECHR upholds 12 year old boy's right to privacy

The European Court of Human Rights has upheld a complaint that Finland was in breach of its positive obligation to protect a child's right to privacy under Article 8.

K.U. v Finland European Court of Human Rights 2/12/08

Facts

In March 1999 an unknown individual posted an advertisement on an internet dating site in the name of the Applicant without his knowledge. The advertisement stated that the Applicant was 12 years old, gave a detailed description of his physical characteristics, and provided a link to the Applicant's web page which in turn contained a photograph and telephone number (accurate save for one digit). Also included in the advertisement was a statement, ostensibly made by the Applicant, that he was looking for an intimate relationship with a boy of his own age or older "to show him the way".

The Applicant only became aware of the advertisement when he received an email from a man offering to meet him and "then to see what you want".

The Applicant's father requested that the police identify the person who had posted the advertisement so that charges could be brought. The service provider, however, refused to disclose the information as it considered itself bound by the confidentiality of telecommunications as defined under Finnish law.

Issue of law

The Helsinki District Court also refused the police's request under the Criminal Investigations Act to require the service provider to divulge the individual's identity. The court considered the case in terms of calumny and was unable to find legal grounds to oblige the service provider to disregard professional secrecy and disclose the relevant information.

The Applicant complained, under Article 8, that an invasion of his private life had taken place and that no effective remedy existed to reveal the identity of the person who had posted the advertisement.

The European Court of Human Rights viewed the case not in terms of calumny—as the Finnish courts had done—but rather in respect of the Applicant's right to privacy, particularly given the potential threat to the boy's physical and mental welfare and his vulnerable age.

Decision

The European Court considered that the posting of the advertisement had been a criminal act that had rendered a minor a target for paedophiles. Children and other vulnerable individuals were entitled to protection by the State from such grave interferences with their private life.

The dangers posed to minors by improper use of the internet had become well-known in the decade before the advertisement was posted. It was not reasonable, therefore, for the Finnish government to claim that they had not had the opportunity to put in place a system to protect children from being targeted by paedophiles on the internet.

The Finnish legislature should have provided a framework for reconciling the confidentiality of internet services with the prevention of disorder or crime and the protection of rights and freedoms of others. Although such a framework has now been implemented, it was not in place at the relevant time, with the result that Finland had failed to protect the Applicant's right to respect for his private life. The requirement for confidentiality had been given precedence over his physical and moral welfare, and the Court therefore found that there had been a violation of Article 8.

For further information please contact :
David Engel

Website hits are not evidence of publication in a defamation case
In Brady v Norman [2008] EWHC 2481 (QB), the High Court has ruled that statistics of visits to a website on which an article was posted provided insufficient evidence that the article had actually been read by substantial numbers of the general public.

Background

Mr Brady, the former general secretary of the rail union ASLEF, brought a claim in defamation against the new general secretary of ASLEF, Mr Norman, in relation to an article published in the union's Loco Journal.

Issue

It was accepted that the article was capable of a defamatory meaning and that publication to the vast majority of readers of the hard copy journal (who were largely members or staff of ASLEF) was protected by the defence of qualified privilege. However, the issue of interest was whether the article, which had also been published online on the ASLEF website and was therefore available for any member of the general public to read, had been published to those who had no legitimate interest in receiving such information. Mr Brady produced no evidence of website publication. Mr Norman disclosed statistics to show that there had been between 649 and 2,179 visits to the website in the relevant month but argued that there was no rebuttable presumption that the article had been published to a substantial number of the general public. He maintained that it was for Mr Brady to prove that the article had been accessed and downloaded by the wider public.

Judgment

It was held that there was no basis on which it could safely be inferred that anyone who lacked a legitimate interest in reading the article about Mr Brady would have accessed the article online. They might have done so but any finding to that effect was pure speculation. In the absence of any evidence that the website was a popular resource for transport enthusiasts generally rather than just for ASLEF staff and members, there was no basis for the Court to infer that the article had been published online to individuals in non-privileged circumstances.

Comment

The judgment suggests that in order to establish substantial publication of an online article, the claimant will need to provide evidence not just of hits to the website in general, but of hits to the page in question. A claimant will rarely have access to the defendant's website statistics and will be reliant on the defendant's disclosure of such data. In practice, this could prove a real hurdle for a claimant, particularly if the defendant's software does not monitor hits to specific pages of its website. If the claimant cannot rely on statistical information, the claimant will need to adduce other evidence to establish that visitors to the website were likely to visit the page in question.

The Brady v Norman decision continues the trend of recent cases – Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 and Mohammed Hussein Al Amoudi v (1) Jean Charles Brisard (2) JCB Consulting International SARL [2006] EWHC 1062 (QB) – which make it clear that in internet libel cases there is no presumption of substantial publication. Claimants are required to bring evidence, whether direct or circumstantial, that the material in question was accessed to a sufficient extent within the jurisdiction.

For further information please contact :
Sarah Vallotton

Carrie v Tolkein: Substantial Publication
In Christopher Carrie v Royd Tolkein [2009] EWHC 29 (QB), the Court had to decide whether or not there had been commission of a real and substantial tort.

Facts

The claimant, Christopher Carrie, sued for libel in connection with a posting he alleged was made by the defendant, Royd Tolkein, on Mr Carrie's own blog site. Mr Carrie had self-published a book in which he had alleged that he suffered sexual abuse at the hands of a deceased member of the Tolkein family and his blog site was used to promote that book.

It was alleged that Mr Tolkein had posted an entry on Mr Carrie's site, which purported to set out "10 facts about Christopher Carrie", including statements that he had a criminal record, that he was a fraudster and had admitted that he had lied about suffering sexual abuse.

Issues

Mr Tolkein asked the Court to grant summary judgment pursuant to CPR Part 24 and/or to strike out the pleading pursuant to CPR Part 3.4(2) on the basis that:

(1) The bulk of the libel claim should be dismissed on the basis of the defence of consent. The posting was made on 24 February 2007. Mr Carrie knew of its publication by, at the latest, 3.41pm on the same day, when he posted a reply. It was not disputed by Mr Carrie that it was within his power to have removed the posting, had he so desired; and

(2) The Particulars of Claim disclosed no reasonable grounds for bringing a claim which was not an abuse of process, and/or Mr Carrie had no realistic prospect of establishing the commission of a real and substantial tort.
The Court was not asked to consider the issue of whether or not the defendant was responsible for the publication of the statement – it was accepted that if the matter went to trial, Mr Carrie would succeed in demonstrating that Mr Tolkein had published the statement which formed the basis of the complaint.

Decision

The Court held that there was no prospect of any jury, being properly directed, coming to a conclusion other than that once Mr Carrie discovered the publication, he had consented to and acquiesced in the continuing publication of the statement. Mr Carrie's case was that he had left the posting on the site only to put subsequent postings in context. Eady J commented that Mr Carrie's conduct was hardly compatible with the suggestion in his pleading that he had suffered "substantial upset and distress".

Therefore, the Court was left to consider the issue of the publication of the statement prior to Mr Carrie's discovery. On Mr Carrie's own evidence, it would appear that the statement had been made for a maximum of 4 hours and 19 minutes before Mr Carrie's reply (and thus his knowledge of its existence).

Mr Tolkein argued that there was no realistic prospect of establishing that any publication took place during that time. The Court held that it was not sufficient to simply plead that the posting had been accessed "by a large but unquantifiable number of readers"; there must be some solid basis for the inference (applying Al Amoudi v Brisard [2001] 1 WLR 113). Eady J commented that it was probably the case that Mr Carrie could have gained access to records of visitors to his website, but had not done so. Without evidence of substantial publication, the Court held that there was, over the short period in question, no commission of a real and substantial tort such as to justify the deployment of the court's resources. Eady J classified the claim as an abuse of process within the Jameel doctrine (Jameel (Yousef) v Dow Jones Inc [2005] QB 946), because of the minimal, if any, level of publication.

Comment

The circumstances giving rise to this claim were unusual, to say the least. However, the case highlights the need to demonstrate that the publication is substantial. There is no presumption in law to the effect that the placing of material on the internet automatically leads to there being a substantial publication. It is interesting in this case that it was presumably well within Mr Carrie's power, as the owner of the site, to produce evidence of the number of users who accessed the blog, yet he chose not to. Perhaps the only explanation for the omission is that it would have demonstrated what the Court held in any event – that there was minimal, if any, publication.

For further information please contact :
David Engel

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